Executive officer not opting into insurance plan safe from civil liability against workers: tribunal

Even though an executive officer has not opted into the insurance plan’s coverage under the Workplace Safety Insurance Act, the officer remains protected from civil liability against workers under s. 28(1), a recent Ontario decision has said.

Ryland MacDonald, lawyer at Strigberger Brown Armstrong LLP, welcomed the decision for its discussion of the interplay of s. 11(2) and s. 12(3) and its insight on whether these provisions fit within the scope of “right to sue” applications under s. 28(1), in a commentary titled Executive Protection: Now 100% Effective Against “Workers.”

In Decision No. 626/19R2, 2021 ONWSIAT 180, the defendant, the sole director of an equipment rental company, suffered a head injury while loading a rented excavator into a trailer attached to his truck. Apparently incapacitated as he was driving his truck, he then struck the wall of a retail store, which in turn caused injuries to the plaintiff, a worker employed at the store.

The plaintiff initiated a civil action due to her injuries, while the defendant filed a right to sue application under the Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sch A, seeking an order declaring that the Act took away the right of the plaintiff to commence an action.

The Ontario Workplace Safety and Insurance Appeals Tribunal issued two decisions in May 2019 and December 2019 to the effect that the Act did not take away the plaintiff’s right to commence an action. The decisions further said that the defendant, as an executive officer, was not covered under s. 28(1) of the Act because he did not have personal coverage under s. 11 at the time of the accident. The tribunal denied reconsideration, then later initiated, upon its own motion, a reconsideration of the two decisions.

The tribunal’s vice-chairperson, holding that the case met the threshold test for granting a reconsideration, allowed reconsideration on the basis of the error of law in both the original decisions and in the previous reconsideration. The vice-chairperson determined that the Act took away the plaintiff’s right of action against the defendant.

The vice-chairperson said that while s. 11(2) states that, subject to s. 12 and s. 12.2, the insurance plan does not apply to workers who are executive officers of a corporation, it does not imply that executive officers who do not obtain optional coverage have forfeited or lack the protection from civil action offered by s. 28(1). If that were the case, s. 28(1) would refer to such a requirement for the purpose of coverage.

“Further explanation from Vice Chair in this regard would have been welcomed because he does not go into detail about how and why sections 11(2) and 12(3) are not related to section 28(1),” wrote MacDonald in the commentary.

However, MacDonald noted that the vice-chairperson’s decision “intuitively makes sense” upon a more meticulous examination of the statutory scheme.